A group of environmental organizations, headed by the Sierra Club, filed a Clean Water Act (CWA) citizen’s lawsuit against the BNSF Railway Company, alleging that the railroad, the only transporter of coal in Washington, illegally discharges coal and coal dust into the waterways of the State of Washington by virtually every one of its shipments of coal through the state. Motions for summary judgment were filed by both the plaintiffs and BNSF Railway. On October 25, the U.S. District Court for the Western District of Washington, seated in Seattle, in a significant ruling, denied both motions. The case is Sierra Club, et al., v. BNSF Railway Company.

The plaintiffs alleged that each and every train operated by BNSF Railway discharges coal pollutants into the waters of the United States without a CWA permit. The coal is allegedly discharged through holes in the bottoms and sides of the rail cars or emitted from the open tops of the rail cars and the train. BNSF Railway has denied these claims, and also argues that the CWA, in this instance, is preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. §§ 10101 et seq. (ICCTA).

With respect to BNSF’s argument that the plaintiffs do not have standing because they cannot use a limited number of waterbodies in a representative capacity to establish standing for all waterbodies in the State of Washington, the District Court noted that, at this stage, it was bound by a Ninth Circuit precedent, Alaska Center for the Environment, et al., v. Browner. The Ninth Circuit, in the 1994 Browner decision, held that a plaintiff seeking state-wide environmental relief was not required to demonstrate harm over the entire state, but was only required to establish that a representative number of areas were adversely affected by the Environmental Protection Agency’s (EPA) inaction, and that “for CWA regulatory purposes, all waters of the state were interrelated.”

The plaintiffs urged the District Court to find that there is no dispute that BNSF is liable for discharging coal into Washington’s waterways without a permit in violation of the CWA; and suggested that BNSF may have violated the CWA over 12 million times in the years 2012 through 2015 based on the number of trips that the BNSF railcars made during this period. The District Court was not convinced that the plaintiffs had demonstrated that BNSF operations were in violation of the CWA because it had not been established that “point source” discharges were involved. The defendant argued that coal emissions to land, coal emissions from land to water, and coal dust emissions are not point source discharges. On the one hand, the District Court agreed with this argument, holding that the plaintiffs “have not provided evidence that there was a discrete conveyance of coal into the water from coal that is deposited onto the land adjacent to the tracks.” Also, coal dust deposited in navigable waters from BNSF trains “is not a point source discharge unless there is a discrete conveyance.” On the other hand, the District Court concluded that direct discharges of coal and coal particles form the trains that travel adjacent to or above the waters at issue are point source discharges. Consequently, while some discharges are evidently violations of the CWA, the District Court declined to find the railroad liable for any CWA violations at this time because there are disputes of material fact that must be resolved at trial.

The District Court also declined to rule on BNSF’s ICCTA preemption argument at this time.